Blevins v. Smith

Uantt, P. J. — This is an action on a covenant of warranty, made by appellant to the respondent, Mrs. Sarah C. Blevins. The land conveyed is the south half of the southeast quarter, section 6, township 46, range 25, Johnson county, Missouri. The evidence showed title in appellant Smith, at the date of conveyance to respondent, except an outstanding inchoate right of dower in Mrs. Mary E. Collier, the wife of Daniel Collier. Appellant deduced his title from Daniel Collier, by virtue of a tax sale and deed under the act of 1877. It was admitted that Daniel Collier was still alive at the time of the com-, mencement of the suit. After respondent obtained her — 588 — deed from appellant, she attempted to mortgage the land and failed because of this outstanding inchoate dower right in Mrs. Collier. She thereupon purchased this right for $150, and brought this suit against appellant for that amount. Appellant assigns two grounds for reversal. One that the court erred in permitting respondent to recover more than nominal damages for the breach of the covenant by reason of the inchoate dower of Mrs. Collier remaining outstanding, and, secondly, that the court erred in not holding that the tax sale and deed conveyed the land absolutely, and by it Mrs. Collier’s inchoate right of dower was entirely barred, and, of course, could constitute no incumbrance. We all agree that the first contention of appellant must be sustained. While an inchoate right of dower is an incumbrance, as it is a contingency founded upon a contingency, it is not susceptible of computation by any definite rule ; hence the practice has been adopted in this state to allow only nominal damages until the dower becomes consummate. Walker v. Deaver, 79 Mo. 664. II. In regard to the second assignment, we think the court committed no error in holding that the tax proceedings did not divest Mrs. Collier’s dower right. We shall not attempt to discuss the power of the legislature to collect taxes. We think it sufficient for the case in hand to ascertain, if we can, what the legislature has determined shall be the policy of the state. In the first place, we have by statute adopted the common law in regard to dower. Lord Coke says: “There be three things highly favored in law, life, liberty and dower.” Chief Justice McKean, in Kennedy v. Nedrow, 1 Dallas, 438, asserts that “dower is a legal, an equitable and moral right. It is favored in a high degree by the law, and next to life and liberty held sacred.” — 589 — Strong as these terms are, they are strengthened by our statute. Section 4525. “No act, deed or conveyance executed or performed by the husband without the assent of the wife, evidenced by her acknowledgment thereof, in the manner required by law toj pass the estate of married women, and no judgment or decree confessed by or recovered against him, and no laches, default, covin or crime of the husband, shall prejudice the right and interest of the wife, provided in the foregoing sections of this chapter,” that is to say, the sections securing the widow her common-law and statutory dower. Now at common law, and by our statute reaffirming it, “the right of dower attaches whenever there is a seizin by the husband, during the marriage, of an estate of inheritance, and, unless it is relinquished by the wife in the manner prescribed by law, it becomes absolute at the husband’s death.” “It is a right in law fixed from the moment the facts of marriage and seizin concur, and becomes a title paramount to that of any person claiming under the husband by subsequent act.” Grady v. McCorkle, 57 Mo. 172. This then is the character of the estate that is to be divested by this new construction of the statute. It is conceded that our statute requires “the owner ” to be made a party before his or her interest in the lands can be affected by a tax proceeding under our act of 1877, and this section has been uniformly construed, so that cestuis que trust, mortgagees, remainder-men and incumbrancers, who are not made parties, are not affected by these suits. Stafford v. Fizer, 82 Mo. 393 ; Corrigan v. Bell, 73 Mo. 53; Graves v. Ewart, 99 Mo. 13. No lawyer will question that inchoate dower is an incumbrance. But it is sought to sustain this new doctrine on the ground that our tax proceedings, beginning with the assessment, is a proceeding strictly “ in remf and we may remark here, that, only by sustaining this position, can this new rule be maintained. — 590 — Beginning with Abbott v. Lindenbower, 42 Mo. 162, under a statute requiring the lands in all cases to be assessed to the person appearing to be the owner at the time of assessment, this court said: ‘ ‘ It is unnecessary for us to say further here, what might be the effect of this last clause in any case, but we may go so far as to declare now that an assessment in the name of a person who neither was nor ever had been the owner of the property would be an utterly void assessment.” Our present statute requires the land to be listed and assessed in the name of the owner, if known. Under this statute in Gitchell v. Kreidler, 84 Mo. 472, Judge Black, speaking for the whole court, says: “ While the judgment is against the property and not personal, still the tax is assessed against the owner, if known. The law loolcs to him for payment of the tax. * * * Such a proceeding cannot be said to be strictly in «” Blackwell on Tax Titles, 630. It will serve' no good purpose to cite authorities to the same effect. This has been the accepted construction of our tax laws for many years. Were it a proceeding strictly “ inremf there would be no such thing as collecting the tax on real estate out of personal property, which it is conceded may be done. Indeed, the whole system is based on the idea that it is the duty of the husband to pay the taxes on his land. And a failure to pay the taxes is a default on his part. The wife is under no obligation to pay the tax. She does not own the fee; she does not reap the usufruct; certainly no system based upon justice would exact of her a tribute on property she might never enjoy, and rob her of her dower for failure to pay a tax she did not owe. If then taxes become delinquent, whose default is it? Not the wife’s, certainly. But it is said, that because there can be no personal judgment for taxes, therefore, section 2197, Revised Statutes, 1879 (R. S. 1889, sec. 4525), cannot be invoked. It would be difficult to conceive of a statute that would — 591 — protect a wife’s dower if this is not sufficient. But we think this construction of this section too narrow. The injury is not confined to “judgments.” The statute says in addition to “ judgments or decrees, confessed or suffered,” “no laches, default, covin or crime of the husband shall prejudice the rights of the wife.” Is it not laches in a citizen to neglect or refuse to pay his taxes? Is not the word “delinquent,” used throughout the statute, a synonym for laches and default ? And could there be a sale of the land and a divestiture of the wife’s dower but for this delinquency on his part? The proposition is too clear for argument. But, if it is held that this section does not protect the wife’s dower against the laches and default of the husband, we will have an anomalous state of affairs. A husband cannot, by deed or mortgage, the most solemn and praiseworthy, for the most valuable consideration, alien or destroy her dower right. No judgment against him, willing or unwilling, can affect her dower; no fraud, covin or crime, and yet he can suffer this new “fine and recovery,” and successfully bar her dower, by simply refusing to pay his taxes and let the land sell, and thus a result is reached, by this simple device, that could not be compassed by the most skilful conveyancer. We cannot believe the legislature intended such result. On the contrary, the whole scope of the tax act clearly shows that the tax law of 1877 was designed to furnish a method for collecting taxes, in which notice was given to the delinquent of the amount of his taxes, and a day in court, if erroneous, to show the error. When the judgment is entered, an execution issues, just as on other judgments, and it is intended to convey the right, title and interest of the defendant who owned the land, and whose duty it was to pay the taxes. Says Judge Black: “We have repeatedly held that the purchaser at these sales acquires, and acquires only, the title and interest of the parties who — 592 — are made defendants.” Graves v. Ewart, 99 Mo. 13; Powell v. Greenstreet, 95 Mo. 14. An ordinary execution sale conveys to the purchaser all the right, title and interest oí the defendant in execution, but it has no effect upon the inchoate dower of the wife. It was clearly the intention of the legislature to give the same effect to a tax deed, under regular and valid proceedings, that a deed under a general judgment would have ; “no more, no less ” “A tax title is a derivative title.” Gitchell v. Kreidler, 84 Mo. 477. Says Judge Black again: “It must be taken as settled law that purchasers at these sheriff’s sales, made on executions in tax suits, acquire only ihe right, title and interest of the defendant in the tax suits.” Powell v. Greenstreet, 95 Mo. 13; Evans v. Robberson, 92 Mo. 192. No inconvenience has been felt in Missouri because in ordinary execution sales the wife’s inchoate dower was not conveyed. Creditors and purchasers know her interest is fixed, and all business transactions are based upon that understanding. The state has adopted a most stringent policy in passing the fee-simple estate to the tax purchasers for the insignificant sum of the tax; a bagatelle, usually, compared to the value of the lands sold. While the state has a right to its revenue, no reason appears why it should take the dower of the unoffending wife and vest it in the tax speculator, thus giving him a vantage over all creditors and purchasers at all other execution sales. We do not so read the statute. We regard the dower right as of inestimable value to the homes of this state. The trend of public opinion is rather to enlarge, as our homestead laws clearly indicate, than to cut off this sustenance of the widow. Instead of being a “shadow” it has proved a “pearl of great price” in thousands of ruined homes. Between the tax speculator and the defenseless widow, section 4525 of our — 593 — statute of 1889 stands as a monument to the wisdom and humanity of our commonwealth. Judge Macearlane concurs in this opinion. Judge Thomas files his separate opinion, holding a different view.